Photo (cc) 2015 by Tom Woodward. Digitally edited to remove license plate number.
In 2020, Massachusetts took what was billed as a major step forward in holding police officers accountable. Following the police murder of George Floyd in Minneapolis, the state created the Massachusetts Peace Officer Standards and Training (POST) Commission “to improve policing and enhance public confidence in law enforcement by implementing a fair process for mandatory certification, discipline, and training for all peace officers in the Commonwealth.”
But according to an investigation by the Boston Institute for Nonprofit Journalism, the POST Commission has not collected the employment data it needs to do its job. The story, by BINJ editorial director Chris Faraone and Sam Stecklow, an investigative journalist currently on a fellowship with the Pulitzer Prize-winning Invisible Institute of Chicago, found that Mass. POST and its director, Enrique Zuniga, made a series of decisions that experts say undermine the agency’s mission. Faraone and Stecklow write:
Despite passing regulations that instruct it otherwise, POST’s database does not include the full employment history of all of the officers that are going through the state’s recertification process — only for officers who have had discipline sustained against them. This prevents the press and public from analyzing data about what are often known as “wandering cops,” who transfer between departments after committing misconduct.
Employment history data are basic information that 27 other states around the country, including Vermont, have released to a national reporting project.
“It doesn’t make any sense that the previous employment of these officers wouldn’t be tracked and recorded if the ultimate goal was to prevent police misconduct from occurring,” Justin Silverman, executive director of the New England First Amendment Coalition,” is quoted as saying. “We’re only getting half the story without this information.”
Over the course of 3,500 words, Faraone and Stecklow go into great detail in explaining what data are missing and what the implications might be. As for the POST Commission, it has earned a New England Muzzle Award for only partially lifting the veil of secrecy that protects police officers who’ve been accused of misconduct.
The story, by the way, is the product of a partnership between BINJ and the Invisible Institute that Faraone explains here. Their investigation is being published not just by BINJ’s HorizonMass affiliate but also by The Shoestring in Western Massachusetts, Luke O’Neil’s Welcome to Hell World newsletter, and about a half-dozen hyperlocal weeklies and other publications.
And lest we overlook the mutual backscratching opportunities here, I’ve interviewed BINJ and HorizonMass co-founder Jason Pramas on “What Works,” our podcast about the future of local news, while Faraone and Stecklow give a shoutout to the Muzzle Awards in their article.
The Keene Sentinel has been a leader in changing how it covers police news
Aidan Ryan of The Boston Globe has an interesting story exploring why many startup local news organizations are taking a different approach to how they cover police news. Rather than running the police log verbatim, including the names of people charged with minor offenses, they’re taking care to focus only on crime stories that have a real impact on people’s lives. He writes:
As longtime newspapers in Massachusetts and across the country continue to disappear, a new crop of online news sites are looking to win over audiences and reimagine how they share police log information. Some have continued the news industries’ tradition of publishing police logs to give people information about public safety, but limit what details they share. Others have decided not to post the logs in an attempt to move away from a reliance on unchallenged police accounts and avoid potentially contributing to a misperception about crime in their communities.
This is an issue I’ve been following intermittently since the 1980s, when I worked for a small paper whose editor-owner would not publish the names of people who’d been arrested for minor offenses. All of us younger reporters in the newsroom thought he was wrong, but I later came to see the wisdom of his approach. After all, “minimize harm” is one of the four principles contained within the Society of Professional Journalists’ Code of Ethics.
Here are three pieces I’ve written over the years that expand on Ryan’s reporting. I hope you find them of some interest.
“A murder, a media frenzy, and the rise of a new form of local news,” Nieman Lab, June 5, 2013. An excerpt from my book “The Wired City,” which is primarily about the New Haven Independent, a digital nonprofit founded in 2005. Among other things, I explore founder Paul Bass’ decision not to identify a “person of interest” named by police in the murder of a young Yale lab technician.
“How an escapade on a frozen pond led one newspaper to reform its crime coverage,” Media Nation, Sept. 26, 2022. An account of how The Keene Sentinel, in southwest New Hampshire, had changed its approach to covering police news by eliminating accounts of minor incidents, focusing on major crimes and trends, and giving people a chance to have their misdeeds removed from Google search — something a number of other papers, including The Boston Globe, have also done.
Greg Moore: “In retrospect, I don’t trust anything or anybody.” Photo (cc) 2021 by Dan Kennedy.
The Boston Globe, as promised, has published anepilogueto itsserieson the Carol and Charles Stuart case that takes on “the media’s sins.” That reckoning takes the form of a commentary by columnist Adrian Walker, one of four reporters on the project and the narrator of podcast version. Super-brief recap: In October 1989, Charles Stuart, a white man from the suburbs, murdered his pregnant wife in Mission Hill and was seriously injured himself. He blamed it all on a “Black man” and jumped to his death from the Tobin Bridge several months later while the police were closing in.
Not surprisingly, a good chunk of Walker’s piece focuses on former Globe columnist Mike Barnicle, who wrote several racist columns as well as a news story that turned out to be false about an insurance scheme Charles Stuart had supposedly concocted. As Walker observes, Barnicle was fixated on trashing the lead suspect in the case, William Bennett, even after Bennett had been exonerated following Stuart’s fatal jump. I quoted fromone of those columns last week, and Walker cites another in which Barnicle made much of Bennett’s seventh-grade report card. Barnicle wrote of Bennett:
The man’s pathetic, violent history is so much a part of the unyielding issues of race, crime and drugs tearing daily at America that it is amazing how any black minister or black politician could ever stand up and howl in public that his arrest was a product of police bigotry and a volley of discrimination aimed at all black residents of Boston.
Remember, this was published after Bennett had been cleared. But as Walker writes, Barnicle was carrying water for the Boston Police, including his brother, the late Paul Barnicle, a homicide detective. Barnicle, not surprisingly, refused to give a substantive interview to the Globe.
We also hear quite a bit from Renée Graham, who, like Walker, was a young reporter at the Globe in 1989 and is now a columnist. The perspective of two Black journalists, Walker and Graham, is fascinating, especially since Walker believes the city’s media coverage of race has improved more (but not enough) than Graham does. “I don’t know that journalism has gotten better since the Stuart case,” Graham said. “You know, I think that the media still is attracted to heat, not light. Like you always say, this is what changed everything. But it didn’t change anything. I mean, look, they couldn’t even write a damn correction, a change, nothing.”
Also quoted is Greg Moore, who at the time was the Globe’s assistant managing editor for local news, later rose to become managing editor (No. 3 in the hierarchy), and still later became the top editor at The Denver Post — the most prominent Black editor in the country until Dean Baquet became executive editor of The New York Times. “In retrospect, I don’t trust anything or anybody,” Moore told the Globe. “You know, if somebody tells me something like that, I want to know exactly, what is that based on? And again, I think that’s another legacy of Stuart, at least for me.”
What struck me more than anything in reading the series was the disproportionate amount of attention given to the murder at a time when people of color were meeting the same fate on a regular basis. Indeed, Walker revisits a story that then-Globe reporter Eileen McNamara wrote explicitly to draw that contrast. As McNamara wrote: “James Moody, 29, was shot to death only a few hours after a robber attacked Carol and Charles Stuart outside Brigham & Women’s Hospital Monday night. But no calls were heard at the State House for tougher sentencing practices.”
Like the Stuarts, I’m white and I live in the suburbs, so I have no direct experience with the racism that people of color continue to experience every day. It seemsbetter, and I guess it is. If an incident similar to the murder of Carol Stuart happened today, I think the police and the media would be much quicker to ask questions about the husband’s role. And yet I’m sure that such incident would still draw outsize attention. Look at how quickly the Black Lives Matter movement that reignited after the police killings of George Floyd and Breonna Taylor curdled into renewed fears of crime, even though statistics showed that there had been very little in the way of an upsurge.
Let’s give the last word to Walker: “For a time, the case sparked an unusual spate of self-examination in the press. But the questions it raised — about how to cover communities of color and about whose stories are valued — were never resolved and resonate to this day.”
Journalism is a field overrun with prizes. But the Pulitzers still matter — and the recognition shown The Boston Globe on Friday was impressive.
As you no doubt have heard, five current and former Globe journalists won in the Investigative Reporting category “for reporting that uncovered a systematic failure by state governments to share information about dangerous truck drivers that could have kept them off the road, prompting immediate reforms.” That’s the first time the Globe has been recognized for its investigative work since it won the Public Service Award in 2003 for its coverage of the pedophile-priest crisis in the Catholic Church.
The Globe was also a finalist in Editorial Writing for its commentary on a zoning battle in Newton, and its sister publication Stat was a finalist in Breaking News for its coverage of COVID-19. One of the three Stat finalists was Sharon Begley, who died of lung cancer earlier this year.
In a video accompanying the Globe’s own coverage, editor Brian McGrory addressed a topic of vital importance — the role of a regional news organization in the powerful to account. Here’s part of what he said.
I was asked last night at a panel I was on about the lack of relevance, and how major metro newspapers are becoming decreasingly relevant in a really tough media age. And I thought about it for a minute, and I came to realize — not for the first time — I’ve been here 30-something years, and the Globe has never felt more relevant to the community than it does now. And all you have to do is look at the work we do day in and day out. The work that’s unfolding right now on the police department, on City Hall, on state government. Name a topic, and it’s every department firing on all cylinders.
Indeed, the Globe is driving the conversation on all of those stories, even amid fine work by other news organizations, including my friends at GBH News, WBUR, CommonWealth Magazine, The Bay State Banner, The Dorchester Reporter, DigBoston, local TV stations and others.
Ownership matters
Unfortunately, the Globe is unusual by the standards of 2021. Take a look at the list of Pulitzer winners. Overwhelmingly, the prizes went to news organizations with solid ownership. The Globe, of course, has been owned for the past seven-plus years by John Henry and Linda Pizzuti Henry, who have steered it to profitability and stability while maintaining the paper’s reporting capacity.
The Star Tribune of Minneapolis is owned by another wealthy business person, Glen Taylor, who has revived a paper that was on the ropes not too many years ago. The Tampa Bay Times is owned by the nonprofit Poynter Institute — a situation that hasn’t been entirely happy, but that has resulted in more robust coverage than if it were owned by a for-profit chain.
The Marshall Project is a well-funded nonprofit. The New York Times, though a publicly traded company, has been controlled by the Ochs-Sulzberger family since 1896. The Atlantic is largely owned by Laurene Powell Jobs, who inherited the late Steve Jobs’ fortune. BuzzFeed News is run as much for love as for profit.
I could go on, but you get the picture. All across the country, newsrooms at regional and local newspapers are being ravaged by corporate chains and hedge funds. The Pulitzers demonstrate, as I have said over and over, that it doesn’t have to be that way.
Speaking truth to power
There had been some buzz in recent weeks that a Pulitzer ought to be awarded to Darnella Frazier, the then-17-year-old who turned her smartphone camera toward George Floyd as he was being murdered by police officer Derek Chauvin.
The Pulitzer judges were thinking the same thing. Frazier was awarded a Special Citation “for courageously recording the murder of George Floyd, a video that spurred protests against police brutality around the world, highlighting the crucial role of citizens in journalists’ quest for truth and justice.”
Rarely has a Pulitzer been more deserved. But it will be for naught if that’s the end of it. Frazier’s work should inspire people everywhere to stand up for what is right. Without her bravery, Chauvin might still be on the beat, terrorizing the citizens of Minneapolis.
The video of George Floyd’s murder at the hands — or, rather, at the knee — of a police officer has changed the way many of us think about law enforcement, social justice and racial equity.
It should change the way we think about journalism, too.
For nine minutes and 29 seconds, Darnella Frazier pointed her smartphone at Derek Chauvin as he squeezed the life out of Floyd. It would have been an act of great courage for anyone to keep recording; that Frazier was only 17 made it all the more remarkable. As Roy Peter Clark wrote for the Nieman Journalism Lab recently, Frazier should be awarded a Pulitzer Prize.
More than that, though, the video should force those of us in the news media to question the symbiotic relationship between reporters and the police — a relationship marked all too often by the police giving us good stories in return for our not asking too many questions.
Until this week I had spared myself the horror of watching the full video. The snippets that news organizations carried struck me as sufficient, and they are if all you’re looking for is a factual understanding of what happened. But to take in the whole scene is to be pulled into the moment — to become a frightened, angry spectator along with the crowd that gathered that day.
We see Chauvin grind his knee into Floyd’s neck as Floyd wails, “I can’t breathe!” and then “Mama, Mama.” We see Floyd fall silent and then go limp. We see Chauvin with a leer on his face while another officer, Tou Thao, impassively but menacingly keeps the bystanders back. We hear voices. “He’s not fucking moving!” “Check his pulse!” “You just really killed that man, bro.” We see an ambulance drive Floyd away.
Now consider what the official police report said. Here’s an excerpt: “Officers were able to get the suspect into handcuffs and noted he appeared to be suffering medical distress. Officers called for an ambulance. He was transported to Hennepin County Medical Center by ambulance where he died a short time later.”
It is hard to imagine an account more false than this one. It is a foul lie. And here is where we need to think about how reporters go about doing their work and why that needs to change.
For generations, reporters at smaller news organizations — community newspapers for the most part — have covered police news by dropping by the police station, examining publicly available incident logs, interviewing the officer in charge about anything that seemed noteworthy, and then writing it up. Assaults, house break-ins, drunken driving arrests — it’s the ultimate in one-source reporting, and I did plenty of it when I was starting out in the 1980s.
That’s no longer good enough. In fact, it never was. Since the start of the Black Lives Matter movement following the police killing of Michael Brown in 2014, I think we’ve all come to understand that if police news is important enough to deserve coverage, then it is important enough to be reported thoroughly. That has only accelerated following the high-profile police killings of Floyd and Breonna Taylor in 2020.
A tragedy such as the murder of George Floyd wouldn’t even make the paper in a large city like Minneapolis based on false police report that was filed. Without Frazier’s video, the truth probably never would have been known. But we now realize that the police are no more or less credible than any other people in authority whom we cover, and their words and actions need to be verified.
“The authoritative source was, and for many reporters still is, considered police officers, district attorneys, law enforcement in general,” my GBH News colleague Phillip Martin said recently on “The Scrum.” He added: “Now, many Black folk and brown folk have long been suspicious and skeptical of police and refused to accept their word for it. They had to prove it. But now we’re seeing that this is permeating in a broader sense, if you will…. Let’s just say liberal America has become more and more skeptical.”
Yet even if journalists understand that the old way of doing things has to change, there are some significant challenges to transforming that understanding into something better.
There are the unknown unknowns, as Donald Rumsfeld used to say — that is, the impossibility of knowing that what seems like a routine police report is anything but, as was the case with Floyd’s murder. We can’t check out everything, and if something seems non-newsworthy, it may just slip away.
There is the reality that newsrooms are becoming more and more strapped for reporting resources — a situation that became that much worse last Friday, when Tribune Publishing’s nine major-market newspapers fell into the hands of the hedge fund Alden Global Capital, known for eviscerating its newsrooms.
There is the decline of the news media as a gatekeeper, with police departments themselves posting reports of arrests and other incidents on their websites and on social media with no independent verification.
Some news organizations, including the giant Gannett chain, have cut back or eliminated the publication of mugshots, especially for nonviolent crimes. A few papers, including The Boston Globe, are giving the subjects of old crime stories a chance to argue that those stories should be made invisible to search engines. Both of those steps help people who’ve been accused of crimes find employment and set their lives on a better path.
Perhaps most important, if a crime isn’t serious enough to warrant thorough reporting, then we shouldn’t report it at all.
Paul Bass, the founder and editor of the New Haven Independent, put it this way recently: “Media should not print names of arrestees unless we have their side, we have seen independent evidence corroborating the charges, an immediate threat exists to public safety requiring divulging the name, or a court has adjudicated the charge.”
Testifying at Chauvin’s trial, Darnella Frazier told the court: “It’s been nights I’ve stayed up apologizing and apologizing to George Floyd for not doing more and not physically interacting and not saving his life.”
But there was nothing Frazier could have done except bear witness — which she did, thus changing the world. At its best, journalism is about bearing witness as well. Can we learn from a brave teenager with a smartphone? Can we resolve to do a better job of serving the communities we cover — by listening, and by seeking truth rather than taking dictation from those in authority?
The fate of journalism depends on getting the answers right — and on not letting this moment fade, unacted upon, into our collective memory.
As you may have read elsewhere, the original police account of George Floyd’s death was mostly accurate yet completely false. It read in part:
Officers were able to get the suspect into handcuffs and noted he appeared to be suffering medical distress. Officers called for an ambulance. He was transported to Hennepin County Medical Center by ambulance where he died a short time later.
Floyd’s murder at the hands — or, rather, at the knee — of Derek Chauvin is likely to have long-lasting repercussions. One of those repercussions should be a rethinking of how journalists report routine police news. It has long been the custom for reporters at small community news organizations to visit the police station every morning, flip through the publicly available log, and report what’s there. If something seems interesting, the journalist might ask to see the incident report written up by an officer. And then this gets regurgitated, the ultimate in one-source reporting.
That’s how I did it in the 1970s and ’80s. It’s how we were all taught to do it. And in a large city like Minneapolis, a man who, according to police, died from medical issues while being arrested for forgery would probably not warrant a follow-up. You’d report it, and then you’d be on your way.
Interestingly enough, one of the papers I worked for in the early part of my career would not publish the names of people who’d been arrested and charged with a crime unless it was fairly big news. We younger reporters thought it was ridiculous, and we chafed at not being able to tell the whole story. But the editor, who was also one of the owners, explained that since our coverage of the court system was spotty at best, we’d likely never know if the person had been convicted or acquitted — and if it were the latter, we’d have smeared their reputation without cause. My editor was right, and ahead of his time. We were wrong.
Earlier this week The Washington Post reported on a case in Loveland, Colorado, where police last year arrested a 73-year-old woman who’d walked out of a Walmart with $13.88 worth of stuff without paying. It turns out that she had dementia and, as is clear from the police video, presented no threat to anyone. Yet she was thrown to the ground and handcuffed, with an officer twisting her arm in such a way that she suffered from a broken bone and a dislocated shoulder.
Can you imagine what the police log item might have looked like? No big deal, right?
The problems presented by taking the police at their word was the subject of an exchange the other day involving my GBH News colleague Saraya Wintersmith, South End News and Bay Windows publisher Sue O’Connell and me. (Note: Within the last few minutes I received a press release saying that O’Connell’s papers are up for sale. More to come.)
Totally guilty of that. And part of it also has to do with staffing. If you publish a community or small paper the resources are limited and it’s impossible to verify every police report. We would look to larger news kegs to do that heavy lifting.
Well, it’s an interesting dilemma, isn’t it? I’ve worked for some very small news organizations. Standard practice is to regurgitate the police log and incident reports. All that needs to be rethought.
— @dankennedy_nu@threads.net (@dankennedy_nu) April 21, 2021
That, in turn, drew a comment from Julie Manganis, who covers the courts for The Salem News and its sister papers.
I'm no self-promoter but I have to say, if more news outlets had reporters in the courthouses on a more regular basis, more news outlets would know that most defense lawyers and many judges also do a pretty good job of dissecting "official" accounts.
Manganis is right, but the News is unusual in its ongoing dedication to court reporting — and even then, most routine police news doesn’t rise to that level.
An additional complication is that many police departments now post their logs online. Under the state’s public records law, police departments must keep daily records of incidents and, in the case of arrests, the name, address and charge against the person who was detained. Members of the public, including journalists, are entitled to see this information. But now these items don’t even get the light vetting that might take place when a reporter asks an officer to explain something. It’s right out there for everyone to see.
Indeed, as I’m writing this, I’m looking at a report from one of the larger cities in the Boston area about a woman who was arrested and charged with trespassing. It’s a pretty thorough entry, and yes, it includes her name, age and address. It is probably accurate. I have no idea if it’s also true — that is, if it offers all the context we need to know to understand what happened.
Major crimes will always receive journalistic scrutiny. Official sources may have the upper hand early on, but as reporters keep digging, they’ll generally ferret out the truth. But we need a serious rethink of how we cover routine police news. And we need to do it at a time when local news resources are stretched to the limit.
One rule we might follow is that if an incident is so minor that it’s not worth devoting the resources to getting all sides, then it’s probably not worth reporting in the first place. But this is just the beginning of a conversation about how to practice ethical journalism at a time when the old ways of doing things are no longer good enough. And never were.
More: I’m pasting Paul Bass’ comment here because I think it adds some important information on how to do it the right way. Bass is the founder and editor of the New Haven Independent, a nonprofit digital news organization.
We have always felt strongly at the Independent that media should not print names of arrestees unless we have their side, we have seen independent evidence corroborating the charges, an immediate threat exists to public safety requiring divulging the name, or a court has adjudicated the charge. I have personally gotten flak over the years from mainstream corporate journalists who felt outraged that we were being so “elitist.” The policy began after noticing that many Black people in new Haven were charged with crimes they didn’t commit. (See this Nieman Journalism Lab story.)
Life imitates art imitates life. I was thinking of that on Tuesday as the three guilty verdicts were being announced in the case of Derek Chauvin, who killed — and we can now definitively say murdered — George Floyd.
Last summer, as part of a series of discussions our church was holding on racism, we watched “Do the Right Thing,” Spike Lee’s classic 1989 movie about race, police brutality and so much more. It is a great film. We saw it when it first came out, and it was a revelation to view it again more than 30 years later, with its rich depiction of life in Bedford-Stuyvesant and the uneasy truce between the white pizza shop owner and his Black customers.
But the climactic scene — the killing of Radio Raheem at the hands of a police officer — shows that Lee’s imagination did not anticipate the depravity of Derek Chauvin. Raheem is killed in a moment of panic as chaos erupts at the pizza shop. Chauvin deliberately jammed his knee into George Floyd’s neck for more than nine minutes until his victim was good and dead.
Did Chauvin mean to kill Floyd? No one can know exactly what was in his tiny heart. But I’m guessing that the answer is yes. Maybe not before. And certainly not after, if only because he had to realize he’d just gotten himself into a world of trouble. But during, as he felt the power surge through him while Floyd gasped for air and called out for his mother? Yes. He had to know what he was doing. How could he not?
If you’ve never seen “Do the Right Thing,” well, do the right thing and watch it. And think about how little has changed over the past three decades. The Floyd family received some measure of justice, but it’s difficult to imagine what the outcome would have been if not for the video shot by Darnella Frazier. Or maybe it’s not difficult to imagine.
Pulsing throughout “Do the Right Thing” is Public Enemy’s “Fight the Power.” The fight isn’t over by any means.
The must-see video clip from Monday night’s protests in Brooklyn Center, Minnesota, features CNN reporter Sara Sidner. Though she makes the interview about herself to an uncomfortable degree, there’s also some real power in hearing her unnamed interview subject describe what’s going on in plain and profane language.
The language was R-rated, and yet credit CNN for staying with the interview. Most networks would have dumped out after someone started repeating expletives, but CNN wisely hung in there because it felt as if the man had something important to say. Sidner did a good job keeping the interview going and allowing the man to say what he wanted to say.
If you back up and try to look at the big picture, it’s so overwhelming that words are inadequate. The protests were in response to the police killing of Daunte Wright, a 20-year-old Black man whose car had been pulled over, reportedly because the license tags had expired. There was a struggle after police discovered a warrant for Wright’s arrest and they tried to take him into custody. One officer, Kim Potter, fatally shot Wright because, we are told, she meant to use her Taser and pulled her gun by mistake — an excuse that clearly needs thorough investigation.
All of this was playing out as the murder trial of Derek Chauvin, the ex-police offer who killed George Floyd, was taking place nearby, and against a backdrop of Black men (and a few women) being killed or harassed by police officers. Among them: National Guard officer and war veteran Isiah Jones, who was assaulted by police in Virginia last year as he was politely asking why he had been pulled over. Video of that encounter recent went viral.
This morning is a time when the racial injustice that continues to run rampant is hitting home particularly hard. The Derek Chauvin trial, which is proving to be every bit as heartbreaking and enraging as it was a year ago, when we watched him kill George Floyd. The ongoing struggle over Georgia’s new racist voter-suppression law.
And it turns out that it’s the late, great Gil Scott-Heron’s birthday, which Brendan was taking note of on WUMB. So here he is performing the incandescent “Johannesburg” in 1976.
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A federal appeals court has upheld the right to secretly record police officers in the performance of their public duties, but has declined to act similarly with respect to other government officials because they have a greater expectation of privacy.
The ruling, by the First Circuit Court of Appeals, essentially strikes down the Massachusetts wiretap law, also known as Section 99, as it pertains to police officers. According to an analysis by Michael Lambert, a First Amendment lawyer with the Boston firm of Prince Lobel, “The decision means that Massachusetts journalists and citizens can, openly or secretly, record police discharging their duties in public without fear of criminal charges under the state’s wiretap law.”
The ruling came in response to two separate cases, both filed in 2016. The case involving the police was brought by a pair of civil-rights activists, K. Eric Martin and René Pérez. The broader case was brought by Project Veritas, a right-wing organization known for making undercover recordings of liberal targets and often editing them deceptively. (For instance, see this backgrounder assembled by the American Federation of Teachers.)
The appeals court upheld 2018 rulings by U.S. District Court Judge Patti Saris. The Dec. 15 decision, by Judge David Barron (himself a former journalist, as Lambert notes), reads in part:
We conclude that, by holding that Section 99 violates the First Amendment in criminalizing the secret, nonconsensual audio recording of police officers discharging their official duties in public spaces and by granting declaratory relief to the Martin Plaintiffs, the District Court properly accounted for the values of both privacy and accountability within our constitutional system. We further conclude that the District Court properly rejected Project Veritas’s First Amendment overbreadth challenge, in which the organization sought to invalidate the measure in its entirety, given the substantial protection for privacy that it provides in contexts far removed from those that concern the need to hold public officials accountable.
As Lambert observes, openly recording police officers who are performing their duties has been legal in Massachusetts since 2011 regardless of whether they have given their consent. Judge Barron’s decision now legalizes secret recordings of officers as well. The issue has drawn attention not just in Massachusetts but across the country as smartphones have made it increasingly easy for citizens to document police conduct and misconduct. The Black Lives Matter movement has been fueled in part by such videos — the best known example being the police killing of George Floyd earlier this year.
Matthew Segal, legal director of the ACLU of Massachusetts, which represented Martin and Pérez, said in a statement:
The right to record the police is a critical accountability tool. Amid a nationwide reckoning with police brutality and racial injustice, the Court has affirmed the right to secretly record police performing their pubic duties.
A final wrinkle worth noting: Retired Supreme Court Justice David Souter was among the three appeals court judges who presided.
But according to an investigation by the Boston Institute for Nonprofit Journalism, the POST Commission has not collected the employment data it needs to do its job. The story, by BINJ editorial director Chris Faraone and Sam Stecklow, an investigative journalist currently on a fellowship with the Pulitzer Prize-winning Invisible Institute of Chicago, found that Mass. POST and its director, Enrique Zuniga, made a series of decisions that experts say undermine the agency’s mission. Faraone and Stecklow write:
